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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

JIEMIN BAI )

)

Plaintiff, )

)

v. )

)

Civil Action No. 21-cv-390 (TSC)

)

MATTHEW M. GRAVES, United States 

Attorney of the District of Columbia, et al.,

)

)

)

Defendants. )

)

ORDER

On January 30, 2019, Plaintiff Jiemen Bai participated in a protest near the White House 

during a diplomatic visit by representatives of the People’s Republic of China. After an altercation 

during the protests, United States Secret Service officers arrested Bai, who was later charged and 

acquitted of two criminal offenses arising out of the altercation. See U.S. v. Bai, No. 19-cr-34, 

ECF No. 66 at 1 (D.D.C. Dec. 13, 2019). Bai has sued the Acting U.S. Attorney for the District 

of Columbia in his official capacity, and now-former U.S. Attorney Liu in her official and personal 

capacities, claiming 42 U.S.C. §§ 1981 and 1983 violations, Administrative Procedure Act

(“APA”) violations, and tort injuries. Compl. ¶¶ 32, 38, 42, 49, ECF No. 1 (“Compl.”). 

Defendants have moved to dismiss, claiming the court lacks the jurisdiction to hear Bai’s claims 

under Federal Rule of Civil Procedure 12(b)(1), and that Bai has failed to state a claim under 

Federal Rule of Civil Procedure 12(b)(6). Defs.’ Mot. at 2-3, ECF No. 6. Because the court lacks 

the jurisdiction to hear Bai’s tort claims, and Bai has failed to sufficiently plead his civil rights and 

APA claims, Defendants’ Motion to Dismiss will be GRANTED.
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Bai alleges five tort claims: false arrest, false imprisonment, malicious prosecution, battery, 

and assault. The court lacks jurisdiction to hear any of them. The Federal Tort Claims Act 

(“FTCA”) is the exclusive remedy for tort actions against federal agencies and their officers. See 

28 U.S.C. § 2679. The FTCA is a limited remedy--a federal court only acquires jurisdiction over 

a claim after a plaintiff has exhausted all available administrative remedies. See 28 U.S.C. § 2675; 

see also Smith v. Clinton, 886 F.3d 122, 127 (D.C. Cir. 2018) (holding that plaintiff’s failure to 

exhaust administrative remedies deprived the district court of subject matter jurisdiction). Bai has 

not alleged that he has exhausted his administrative remedies and Defendants submit they have 

not received any such filing. See Defs.’ Mot., Jenkins Decl. at 1, ECF No. 6-2. While courts 

construe complaints liberally and grant plaintiffs “the benefit of inferences that can be derived 

from the facts alleged,” Bai has failed to proffer any evidence that would allow this court to infer 

that he exhausted or even attempted to exhaust his administrative remedies. Consequently, the 

court lacks jurisdiction to hear his tort claims. 

A complaint must contain “sufficient factual matter” that, when accepted as true, states a 

plausible claim to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). Bai has alleged no facts to support his civil rights claims or 

his APA claim.

As a threshold matter, Bai’s 42 U.S.C. § 1981 claim fails because § 1981 prohibits 

discrimination in the making and enforcing of contracts, and Bai has not alleged any contractual 

arrangement. More broadly, Bai’s invocation of § 1981 and § 1983 is inherently faulty. While 

these statutes are federal remedies, they only apply to persons acting under color of “any State or 

Territory, or . . . District of Columbia” law; they do not apply to federal officials exercising federal 

authority. See, e.g., Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005) 

(“Section 1983 does not apply to federal officials acting under color of federal law); Marcus v. 
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Geithner, 813 F. Supp. 2d 11, 19 (D.D.C. 2011) (42 U.S.C. § 1981 “does not apply to actions taken 

under color of federal law”) (emphasis in original) (citation omitted). United States Attorneys are 

federal officers. See 28 U.S.C. § 541 et seq. Plaintiff has alleged his civil rights violations stem 

from Defendants’ “usurping and abusing the Federal justice system” by choosing to prosecute him. 

Compl. ¶ 33. In the absence of any facts showing that Defendants—federal actors—were acting 

under color of state law, Bai’s 42 U.S.C. § 1981 and § 1983 claims must fail.

Bai’s claim that the Defendants’ “outrageous behavior in pursuing [his] . . . vindictive and 

frivolous prosecution” violated the APA similarly falls short. Compl. ¶ 53. As the Supreme Court 

has explained, federal prosecutorial decisions are afforded a “presumption of regularity,” absent 

any clear evidence to the contrary or violation of constitutional constraints. U.S. v. Armstrong, 

517 U.S. 456, 464 (1996). Beyond characterizing his prosecution as “outrageous,” “vindictive,” 

and “frivolous,” Bai has presented no evidence that Defendants’ prosecution of him was illegal, 

irregular, or violated the Constitution. Absent such evidence, the court cannot sustain Bai’s APA 

claims. 

Finally, in his opposition to Defendants’ Motion to Dismiss, Bai attempts to re-plead his 

tort claims as First Amendment violations of the Bivens Doctrine. Pl.’s Opp’n at 3–5, ECF No. 

11; see also Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 

As Defendants correctly observe, however, “a plaintiff cannot amend its complaint by briefs in 

opposition to a motion to dismiss.” See Kingman Park Civic Ass’n v. Gray, 27 F. Supp. 3d 142, 

165 n.10 (D.D.C. 2014). Bai’s Complaint made no reference to a Bivens claim, and his three 

invocations of the First Amendment were in support of his tort claims. While Plaintiff is free to 

amend his complaint, he cannot do so via opposition to a Motion to Dismiss. 

 
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For these reasons, Defendant’s Motion to DISMISS is GRANTED. 

Date: January 13, 2022

Tanya S. Chutkan 

TANYA S. CHUTKAN

United States District Judge